ANNUAL ADDRESS 


BEFORE THE . 


SOUTH CAROLINA BAPv ASSOCIATION 


DELIVERED BY 


ALTON B. PARKER 


ON 


Thursday Evening, January 25, 1912 


AT COLUMBIA 


s'Ja 


I am indeed grateful for the opportunity you have af¬ 
forded me of meeting the leaders of the Bar of South 
Carolina and am keenly mindful of the compliment your 
invitation implies. The early history of your State, the 
ability and patriotism of your Bar throughout all its ex¬ 
istence prompts me to invite your attention to an obliga¬ 
tion that rests upon the Bar of the United States more 
than upon any other class of our citizens, because of the 
lawyer’s wider knowledge and keener appreciation of the 
subject,—a duty which, if patriotically assumed, will bar 
threatened injury to, if not destruction of the safeguards 
of the civil and religious liberty we enjoy to-day. That 
personal liberty is the very foremost of all our blessings I 
have long thought, but observations and reflections dur¬ 
ing a journey through countries where our system of law 
is unknown lead me to the conclusion that it is of greater 
value even than the total of our other blessings. 

As you are students of history as well as of law, you will 
agree with either my first or my revised estimate of value. 
Either, I hope, will justify in your opinion the subject I 
have chosen to bring to your attention. Its dimensions are 
so great that I can hope to present only the outline, and 
trust that you will draw upon memory’s storehouse for 
all necessary details. 

The life-blood of liberty is justice. “Justice is the great¬ 
est interest of man on earth. It is the ligament which 
“binds civilized beings and civilized nations together. 
“Wherever her temple stands and so long as it is duly hon- 


“ored there is a foundation for general security, general 
“happiness and the improvement and progress of our 
“race.” 

As liberty cannot exist without justice, so a system of 
law is necessary for the administration of justice. And 
a government of laws, not of men, was the shibboleth of 
the fathers of this Republic. They were in large part de¬ 
scendants of the people who had devised, adopted and 
enforced that palladium of English liberty,—the Magna 
Charta. They had inherited a love of the liberty and of the 
equality before the law that Englishmen had struggled 
for, achieved and enjoyed. Their aim was to secure for 
themselves and those who should come after them not only 
the right of self-government but also the full benefit of that 
vast treasure house of legal principles and precedents of 
the common law and equity so painstakingly developed and 
applied by England’s judiciary—principles upon which 
was erected a system of law that protected alike the rich 
and the poor, measured their liabilities and responsibilities 
by the same standard and secured both against official 
tyranny. 

The fathers intended to assure beyond doubt to this 
people that’ individual liberty which Lord Chatham as¬ 
serted to be enjoyed by the people of England: “The 
“poorest man in his cottage bids defiance to all the forces 
“of the Crown. It may be frail; its roof may shake; the 
“wind may blow through it; the storms may enter; but the 
“King of England cannot enter. All his forces dare not 
“cross the threshold of the ruined tenement,” 

So the great principles of liberty won by the people of 
England after a struggle covering the centuries from 
Runnymede and Magna Cliarta to the English Revolution 
of 1648 and the Bill of Rights of 1689, were incorporated 

GHfl 

Author 


3 


in our constitutions, the right to amend which was re¬ 
served to the people alone, to the end that neither of the 
departments of the Government, nor all acting together, 
could trespass upon the liberties thus secured. Among 
these principles of liberty—something like thirty in all— 
are these:— That no person be disfranchised or deprived 
of the rights and privileges of citizenship unless by the 
law of the land or the judgment of his peers; that all per¬ 
sons be secure against unreasonable searches and seizures 
and not be compelled to witness against themselves; that 
trial by jury be inviolate; that religious liberty be accorded 
to all; that the writ of habeas corpus be not suspended 
except when the public safety demands; that no person be 
deprived of life, liberty or property without due process 
of law, nor private property be taken for public use with¬ 
out just compensation, and that freedom of speech and lib¬ 
erty of the press be not restrained. 

Thus the truth was recognized that the individual has 
certain rights which he may assert against the people— 
that the minority have rights even against the majority. 

The voice of the majority is the guide of legislature and 
executive. The voice of the minority or of the individual 
demanding constitutional rights is audible to the judiciary 
only. Each of the three departments of government is 
charged with the duty of defending the Constitution and 
each member thereof is required to make oath that he will 
support it. But the burden of protecting the Constitution 
has rested upon the courts since that day when Chief 
Justice Marshall, the great expounder of the Constitution, 
with the concurrence of his associates in a court which 
has proved to be the greatest in history, declared in Mar- 
bury vs. Madison that an act of Congress was null and 
void because forbidden by the supreme law of the people. 




(In passing it should be noted that twenty-four years 
before this decision was made the Supreme Court of New 
Jersey in Holmes vs. Walton had ruled that an act pro¬ 
viding for a trial by a jury of six men, was unconstitu¬ 
tional. ) 

The first few acts declared unconstitutional by the 
United States Supreme Court conferred on the courts 
powers which were not judicial. This Court, therefore, 
first exercised its power to prevent usurpation by the 
judiciary itself of functions not within the scope of its 
prerogative. The course thus begun in self-denial the 
courts continued to exercise with the same impartiality 
when called upon to determine whether a given statute was 
forbidden by the Constitution. 

More than a century has pased away since the mem¬ 
orable day on which the Supreme Court handed down that 
opinion of Chief Justice Marshall and every hour of it has 
borne witness to the wisdom of the fathers in placing the 
law above the will of man. 

We know from actual experience that there is no force 
in the contention that conscience is a sufficient guardian 
of the Constitution and will prevent the enactment of un¬ 
constitutional laws. A legislature and executive, or in¬ 
deed a majority of the people, may and have infringed 
upon personal rights guaranteed by constitutions. A 
notorious and familiar instance of such encroachment by 
legislation is found in the post-bellum statutes, prescribing 
a drastic oath and providing, among other things, that 
lawyers who had not taken it might not practice in United 
States courts, and ordaining even that ministers who had 
not taken it might not preach the gospel or perform the 
marriage ceremony. 


In Ex parte Garland, 4 Wall, 333, the court declared un¬ 
constitutional the Act of Congress of July 24, 1865, pro¬ 
viding that no person be admitted to practice in the United 
States courts or be allowed to appear by virtue of pre¬ 
vious admission without oath that he had never voluntar¬ 
ily borne arms against the United States since he had been 
a citizen thereof, or given aid, etc., to those engaged in 
armed hostility, or rendered voluntary support to any 
pretended government against the United States. The 
statute was held to be a bill of pains and penalties and to 
offend against the ex post factor clause. 

Callen vs. Wilson, 127 U. S., 540, declares unconstitu¬ 
tional trial without a jury in the District of Columbia for 
a conspiracy to boycott, as for all felonies and for all mis¬ 
demeanors of such a serious nature as were triable by 
jury at common law. 

A statute of Missouri in addition to imposing on all 
voters and office-holders an oath that they had never 
borne arms against the United States and disfranchising 
and disqualifying for office Confederate soldiers, at¬ 
tempted to prevent the clergy from teaching, preaching or 
solemnizing marriages unless they took the same oath. It 
was held unconstitutional as a bill of pains and penalties 
and as ex post facto in Cumings vs. Missouri, 4 Wall, 277. 

We have seen in our time also Congress and state legis- 
tures pass, and chief executives sign, numerous bills that 
plainly offended against either the Federal or a state con¬ 
stitution, and we know in the light of the history of this 
legislation, covering nearly a century and a quarter, that 
Richard H. Dana, Jr., was right when he said in the Massa¬ 
chusetts Constitutional Convention of 1853: “A consti¬ 
tutional government can no more exist without a power 
“to assert the supremacy of the constitution than the world 
“can exist without the providence of God.” 


Iii the trinity of government created by the fundamental 
compact, the powers are indeed three in one and one in 
three, but the untrammeled independent exercise of each, 
within its sphere, is indispensable to the perfect strength 
of the whole. Thus blended they yield a light to illumine 
the whole world of human society. In lighting this lamp 
the fathers realized that the flame could not endure if the 
cruse did not contain the essential oil—the power of judg¬ 
ing separate and apart from that of enacting and execut¬ 
ing the laws. Hence, the judiciary was invested with and 
has fearlessly asserted, though always with the extreme of 
deliberation and delicacy, the authority to define and main- 
' tain immovable the boundary established by the Constitu¬ 
tion beyond which the co-ordinate factors of government 
cannot move, and this has been accomplished, in the words 
of the Marquis de Mabois, “By a power which has no 
“guards, no palaces, no treasuries, no armies, but truth 
“and wisdom.” 

This splendid achievement lias been possible because of 
the perfect independence of our judiciary. That independ¬ 
ence is threatened now by a pet project of restless bidders 
for votes: the recall of judgs. 

Sir Frederick Pollock, the celebrated English lawyer, 
known to all of you through the books of which he is the 
author, in an address to the New York County Lawyers 
Association in October said: “In the old home of the com- 
“mon law, which through your several constitutions you 
“have made a part of your law, we are wholly unable to 
“understand how it is possible that there should develop 
“a public sentiment in the United States in favor of the 
“recall of judges. I think I may safely say that in all Eng¬ 
land there is not a single lawyer who would favor such a 
“proposition.” 


I think it can safely be said, as well, that few, if any, 
real lawyers in this country who' are students of history 
and of law are in favor of the recall of judges, and further, 
that the Bar view with amazement and alarm the action of 
several states in so amending their constitutions as to pro¬ 
vide for a recall. Evidence in support of that assertion 
may be found in the action taken by the American Bar 
Association at its recent meeting in Boston. The ex-Presi- 
dents of the Association were requested by a resolution to 
recommend suitable action for the Association upon tin- 
subject of the recall of judges. As one of the members of 
that Committee, I suggested that instead of writing an ad¬ 
dress which would be read and then largely forgotten, we 
should take action looking to the organization of the Bar 
of this country to combat this threatening danger. A reso¬ 
lution was prepared providing for the appointment of a 
committee representing each state to co-operate with the 
state, city and county bar associations of the country with 
the view of rightly informing public opinion upon this im¬ 
portant subject. The adoption of the resolution was by 
rising vote, only three dissenting of the more than six hun¬ 
dred members present, representing every state. The com¬ 
mittee has been appointed and) I trust it will receive the 
hearty and effective co-operation of this Association. 

Our profession is respected of all men; it is essential to 
the enjoyment of true liberty and to the peace and welfare 
of society, and that fact is widely recognized. With the 
power for public good which we possess there is a corres¬ 
ponding duty to exercise it, and in order that it may be 
fully done each, should do well his part. Such duty rests 
heavily upon us at this moment and never in our history, 
as you all well know, has there been such a pressing need 
for its discharge. 


8 


The independence of the judiciary in the exercise of all 
the powers now enjoyed it is our duty to defend, for all 
threats against it are a menace to the supremacy of the law 
in a government wisely designed by the founders as a gov¬ 
ernment of law, not of men. 

During all our history down to a very few years ago the 
judiciary enjoyed the confidence and affection of the 
people. That is not to say that the people have always 
made the wisest possible selections; neither is it to say that 
every judge has measured up to the high average standard 
maintained by the judiciary of the country. But I am jus¬ 
tified in saying that there is no class of officials that main¬ 
tain so high an average for character and ability. 

Still other elements have broadened and strengthened 
the confidence of the people. The freedom of the bench 
from partisan political bias, the traditions of judicial 
office, the environment of the courts, the restraining influ¬ 
ence of high-minded lawyers, the association with brother 
judges, the careful study of the law and the keen love of 
justice which grows and extends with its ministration, to¬ 
gether with the absence of political ambition, give to the 
judge calmness of mind with which to perceive the right 
in times of unhealthful public excitement, and the courage 
to do the right as he sees it though the heavens fall. 

Time and time again the judges have stayed the fury of 
a storm aroused by the spirit which cries, “Away with law, 
“lynch him, lynch him!” Every time it has happened every 
thoughtful man, familiar with the situation, has thanked 
God for the wisdom of the fathers in providing for the 
supremacy of the law by designating its proper ministers— 
the judges—to protect that supremacy. 

Why then this remarkable change which has already 
found expression in the votes of the people in several states 


9 


on and near the Pacific* in favor of the recall of judges and 
has stimulated advocacy of constitutional amendments 
taking away from the courts the power to declare void stat¬ 
utes enacted in violation of the Constitution? 

What man fit to act as a judge will desert an honorable 
and successful career at the bar for a place on the bench 
with the prospect of being ignominiously flung from that 
eminence by the momentary dissatisfaction of a bare ma¬ 
jority fanned into action by disgruntled party leaders or by 
that portion of the press which, attributing to itself Divine 
omniscience, thunders forth with Pharisaical severity its 
decrees, void of justice, void of mercy, void of common 
sense, and often wholly void of truth? However fair and 
conformed to> the law the court’s decision, if the sudden 
judgment of the people be adverse and be encouraged by 
politicians or press, or both, the judge may be unfrocked. 
If his decision be against the law, may it not now be re¬ 
versed on appeal? If he be false to the public trust con¬ 
fided to his administration, may he not now be removed? 
Should we attempt to add to these safeguards a provision 
that all of the judge’s decisions must please the majority, 
we present to him the impossible task of serving two mas¬ 
ters. Though the higher court pronounce his decision just, 
the electors may hurl him in disgrace from office for having 
made it. 

If put into practice and carried to its inevitable conclu¬ 
sion, recall of judges is the substitution of popular opinion 
for legal procedure—it is justice—or injustice—meted out 
not according to the law of the land but according to sup¬ 
posed public sentiment. Recall of judges spells in the ulti¬ 
mate result a recall of the judicial system and the substi¬ 
tution of a vigilance committee. There is a rude state of 
civilization in which a vigilance committee is a blessing, 


10 


but as the race or country develops, laws and courts take 
the place of these make-shift tribunals. 

Never before, I think, in the history of civilization has 
any blind leader of the blind advocated as progressive a 
return to the chaotic conditions inherent in administration 
of justice by caprice rather than by the rules of law. 

The recall of judges, however, is but the first step to¬ 
wards the cherished goal of the leaders of the movement 
against the judiciary. Their ultimate aim is the recall of 
the power of the courts to declare void such legislative acts 
as are forbidden by the constitutions, state and Federal. 
Were that to come to pass there would exist no power to 
prevent a legislative department of government from sus¬ 
pending the writ of habeas corpus at will, passing bills of 
attainder, and ex post facto laws, infringing the right of 
trial by jury, establishing religious tests for office, prohi¬ 
biting the free exercise of religion, abridging freedom of 
speech and of the press and the right of the people to as¬ 
semble and to petition, infringing the right to keep and 
bear arms, authorizing unreasonable searches and seizures, 
permitting the infringement of the rights of accused per¬ 
sons, taking life, liberty or property without due process of 
law and private property without compensation, and pro¬ 
viding cruel and unusual punishments. These rights need 
little active guardianship now, but only because the courts 
stand ready to defend them. 

Let him who' doubts the possibility of a legislature in¬ 
fringing such fundamental rights refresh his recollection 
by a study of the pages of history, not overlooking our own 
and including the post-bellum statutes, to which reference 
was earlier made. 

I repeat the inquiry—What has happened of late to lead 
so many to favor stripping the members of the judiciary of 
their independence and shearing them of the power to en- 


11 


force the Constitution? Surely the judicial standard lias 
not been lowered of late. President Taft must be given 
great credit for his judicial appointments. In my State 
for a number of years past the judges of the higher courts 
have been re-elected almost without exception by the en¬ 
dorsement of both parties as a reward for faithful, able 
and independent service. The Bar generally throughout 
the United States are vigilant and effective in this direc¬ 
tion. The cause of the change in public sentiment then is 
not to be found in the lowering of the judicial standard. 
Elsewhere we must search for it, for find it we must if we 
would successfully combat it. 

It had its beginning during the incumbency of the last 
President. More combinations to restrain trade and pre¬ 
vent competition came into existence during his incum¬ 
bency of the office than in all our previous history. Of his 
administration Senator LaFollette said on the third day of 
this month: “During all that strenuous time there were 
“more combinations than under all the administrations 
“that preceded since the Sherman Law was enacted in 
“1890. * * * There wasn’t anything left important 

“enough to combine.” For the larger part of that period 
every northern state was in the control of the party of 
which he was the head, and therefore his party through its 
Federal and state administration is responsible for it. 

When the protests of the people against the rising tide 
of higher prices began to be heard, he sought with his ac¬ 
customed political shrewdness to shift the responsibility 
from the shoulders of his party. To that end he inveighed 
against the impotency of the law and the “well-meaning 
but fossilized-of-mind judges,” laying the responsibility of 
our evil state to the law and its ministers. 


12 


Was ever accusation more unjust? From whence came 
the special privileges against which protest is raised? From 
the courts? No, not in a single instance. They came by 
statutes passed by legislative bodies and in most instances 
approved by chief executives. From whence came the 
monopolies and combinations to restrain trade and pre¬ 
vent competition, abhorrent for centuries to the common 
law as this year applied and enforced by the Supreme 
Court in Dr. Miles Medical Co. v. Park, 220 U. S., 373? 
Not from the courts, whether Federal or state. Some of 
them received their life and encouragement from statutes, 
but the large majority have grown and spread simply be¬ 
cause the executive officers of state and nation failed to 
make even an attempt to check them. 

Not one particle of criticism can justly be leveled at the 
judiciary. That body has always stood, as it stands now, 
ready to enforce the law when properly moved, of which 
fact abundant evidence is at hand under the present ad¬ 
ministration. Nevertheless, the denunciation of the law 
and its ministers was restated again and again, and coming 
as it did from the highest official of the land, it found its 
way into every newspaper and publication in the country 
and found lodgment finally in the minds of multitudes of 
people. 

Direct attack was made upon the courts because they 
declared unconstitutional an act designed in part to in¬ 
crease the Federal power at the expense of the states. One 
of the early efforts in that direction was popularly known 
as the Employers’ Liability law. By its provisions the 
Federal Government practically took the place of the state 
in the regulation of both employers and employees of its 
railroad corporations, provided such railroad carried the 
produce of other states. The courts held that the commerce 


13 


clause did not confer such power upon Congress and the 
act was set aside. The act had many supporters in the 
labor organizations and elsewhere, and the denunciation 
to which the courts were subjected for their decision in¬ 
creased, as it was intended to do, the number who were 
coming to believe that it might be true that the courts 
stand in the way of the gratification of the people’s wishes 
and hence of that real progress which a “steward of the 
public welfare” would gladly assure. 

The then President devised for effective and influential 
speech-making purposes, a plan to oust the courts from the 
consideration of such legislation in the future by so penal¬ 
izing the victims of congressional usurpation as to prevent 
appeal to the judicial department of the Government for 
redress. But let the designer speak for himself. He said 
at Jamestown, June 10, 1907, that the newly proposed em¬ 
ployers’ liability law “should be such that it will be im¬ 
possible for the railroads to successfully fight it without 
“thereby forfeiting all right to the protection of the Federal 
“Government under any circumstances.” 

This proposition to eliminate the judicial department of 
the Government from performing its duty under the Con¬ 
stitution does not stand alone. By other proclamations 
and overt acts the executive power exhibited its hostility 
to the department of government which enforces the Con¬ 
stitution. The Chief Executive of the nation went out of 
his way on many occasions to attack courts. He denounced 
the decision of the Supreme Court in People vs. Lochner, 
the bake shop case, in which labor was largely interested. 
That case held a statute of New York unconstitutional. It 
presented a question so close that the Appellate Division 
of New York stood 3 to 2, while the vote in the Court of 
Appeals was 4 to 3, five opinions being written. Though I 
wrote the prevailing opinion in our Court of Appeals and 


14 


so was overruled by the United States Supreme Court, I 
am grieved that in his defense of what was my position 
he stooped to harsh criticism of our highest court. In his 
attack he assumes there is no opportunity even for debate. 
Naturally this widely circulated view has had great in¬ 
fluence with a very considerable number of the million and 
a half or more of men who are interested in all legislation 
which is favored by organized labor. The critic’s difficulty 
in reading the decision is that his review is based on the 
question: Is it expedient, Avhile the court’s decision is based 
on the question: Is it constitutional. 

An examination of the specific instances selected by him 
for attack on the courts will disclose that they are admir¬ 
ably selected to persuade a large number of people that 
they have been wronged by the action of the courts. Many 
of his supporters have followed his example and with an 
effect which is now apparent to even the most careless 
observer. 

The reports which came to him of the effect of his cam¬ 
paign against the judiciary enabled him to go out of office 
fully appreciating that through his skill his administra¬ 
tion and his party had escaped, for a time at least, the 
responsibility which was justly theirs. So successful had 
been his campaign against the law and the judges that he 
started it anew on his return from Africa. What his pres¬ 
ent motive may be we need not conjecture. He said at 
Denver, August 29, 1910, “We are all perfectly familiar 
“with the judges (referring to the United States Supreme 
“Court), who are perfectly honest but fossilized of mind. 
“* * * I am, however, convinced both from the inconsist¬ 
ency of these decisions with the tenor of other decisions, 
“and furthermore from the very fact that they are in such 
“flagrant and direct contradiction to the spirit and needs 


15 


‘‘of the times that sooner or later they will be explicitly or 
“implicitly reversed.” 

His grievance is that the decisions are “in such flagrant 
“and direct contradiction to the spirit* and needs of the 
“times.” It means to his multitude of readers that courts 
should decide not as the people have commanded in their 
Constitution but according to the notion of himself and his 
followers as to the “needs of the times”; not as their oaths 
as judges to support the Constitution require, but as they 
may conceive public sentiment to be at the moment. This 
suggestion is perfectly lawless but it is in absolute har¬ 
mony with his speech at Harrisburg, Pa., while President. 
He said, “We need through executive action, through legis¬ 
lative and through judicial construction and interpreta¬ 
tion of law, to increase the power of the Federal Govern¬ 
ment. If we fail thus to increase it we show our impo¬ 
tence.” 

In other words, the Federal Government needs powers 
that it has not, powers that have been reserved to the states 
or to the people. Such powers as we may obtain not from 
the people as the Constitution provides, but by seizure, 
“through executive action, through legislative and through 
“judicial construction and interpretation of law.” If we 
fail thus to get it—that is to say, the powers we think the 
Federal Government needs—“we show our impotence.” 

At Osawatomie he defined with great clearness “New 
Nationalism” as he understands it, and from it let me 
quote you four sentences: “The new nationalism is impa¬ 
tient of the utter confusion that results from local legis¬ 
latures attempting to treat national issues as local issues. 
“It is still more impatient of the impotence which springs 
“from the over-division of government powers. This new 
“nationalism regards the executive power as the steward 


16 


“of the public welfare. It demands of the judiciary that 
“it shall be interested primarily in human welfare rather 
“than in property, just as it demands that the representa¬ 
tive body shall represent all the people rather than one 
“class or section of the people.” 

If the suggestion intended in the last sentence is that 
the judiciary are more interested in property than in 
human welfare, it is not true and the members of the Bar 
of this country know it is not true. If, on the other hand, 
the idea intended to be conveyed is that property should 
not be afforded the protection which the Constitution 
accords, we can see how readily the champions of the pub¬ 
lic ownership of property will join him in his crusade 
against the courts. 

Each of the sentences quoted is intended to undermine 
public confidence in the courts of this country. The first 
complains of the confusion resulting from the attempt of 
state legislatures to treat national issues as local issues. 
If in the states the issues were not regarded as local they 
would not, of course, attempt to treat them as such, and if 
not in fact local the Supreme Court would not sustain the 
statute. Nevertheless, he conceives that the “steward of the 
public welfare” might be able to override the action of the 
local legislatures, notwithstanding their act be within their 
constitutional rights, were it not that the Supreme Court 
of the United States stands ready to defend such rights. 
With the Court stripped of that authority there is no way 
to hold in check a president who has the courage through 
executive action alone, or aided by the action of other de¬ 
partments if need be, to secure increase of Federal power 
for the executive at the expense of the states or of the 
people, and the dawn of the day of the man on horseback 
is ushered in. 


17 


He said recently in an address at Carnegie Hall, “But 
“experience has shown that people may be aroused and 
“legislative and executive officers may show the intention 
“of carrying out the people’s purpose, and yet the whole 
“movement for good may come to naught and festering 
“wrong and injustice he perpetuated because certain 
“judges, certain courts are steeped in some outworn politi¬ 
cal philosophy and totally misapprehend their relations 
“to the people and the public needs.” 

In the same address he warned the judiciary in general 
that unless there was a change for the better and public 
confidence was somewhat restored, the power to pass on 
legislative enactments which now rests with American 
judges, may be stripped from them. 

The most recent delivery from the lips of the oracle is to 
the effect that the courts should be permitted to hand down 
opinions as to the constitutionality of laws but the final 
decision should be by popular ballot. 

It is not fair to assert without qualification that the 
courts have power to pass on legislative enactments. The 
only poAver which the courts either have or exercise over 
legislation is that of denying effect to every such legislatiye 
enactment, and no other, as the people by the Constitution 
have said to the legislature, “Thou shalt not make.” 

He studiously avoids, however, giving the courts the 
credit of performing their duty as the people by their con¬ 
stitutions have commanded, for that would end his cam¬ 
paign, whch has for its purpose a president who shall be 
the “steward of the public welfare” with the door of the 
courts closed to those who claim that they have been de¬ 
prived of the protection of one or more of the great princi¬ 
ples of liberty which the people haA^e incorporated into our 
constitutions. Through his leadership, while President 


18 


and since, a large and uninformed following lias been re¬ 
cruited throughout the United States who are waging, 
many of them unconsciously, a battle against the supre¬ 
macy of the law. The uninformed think, because they 
have been deceived, that the courts are in effect vetoing 
legislation that the people want, not that the courts are 
merely setting aside enactments that the people have for¬ 
bidden the Legislative Department of the Government to 
pass. If they should be made to understand the whole 
truth before it is too late, the movement in form against 
the judiciary but in reality against its power to hold in 
check the would-be usurpers of power not granted by the 
people, will end. But how can it be accomplished? Only, 
I believe, by an organized effort on the part of those mem¬ 
bers of the Bar who place love of country and devotion to 
our constitutional scheme of government above ambition 
for political distinction or preferment. The time to make 
that effort is now, not to-morrow, but now. 

There have been some indications lately that the great¬ 
est living ex-President realizes his responsibility for the 
unwarranted intolerance of courts and constitutional law 
that is manifested so frequently. Resort has been had to 
expurgation of old speeches, definition of old positions, 
and spineless arguments in their defense by way of justifi¬ 
cation and in an effort to escape responsibility for this 
great wrong. But the judiciary is assailed again in the 
same breath, the effort to justify his amended position 
fails, and the responsibility is forever fixed. 

I have not spoken of the other persons of moment who 
have followed in the path of error he has attempted to 
blaze through the wilderness of discontent. There are al¬ 
ready many of them and more there will be if in that direc¬ 
tion the finger of hope points the way to political prefer- 


19 


ment, I call your attention to a few of liis utterances and 
to the fact of their continuance down to this hour that 
you may see clearly who the real leader of the movement is. 
Certain am I that with your eyes focused upon him as the 
leader, argument will not be needed to persuade you tha't 
the hour has come when the members of the Bar must 
buckle on their armor and go out to do battle against those 
who would destroy the keystone of our governmental arch. 

Mr. Bryce says in his Essay on Obedience, Volume 2, 483, 
485: “The abstract love of liberty, the desire to secure 
“self-government for its own sake apart from the benefits 
“to be reaped from it, has been a comparatively feeble pas¬ 
sion even in nations far advanced in political develop¬ 
ment. * * * The greatest peril to self-government is 

“at all times to be found in the want of zeal and energy 
“among the citizens. This is a peril which exists in democ¬ 
racies as well as in despotisms. Submission is less fre¬ 
quently due to overwhelming force than to the apathy of 
“those who find acquiescence easier than resistance.” 

Let us take good care that some future historian shall 
not be able to say of us, “The lawyers in the early part of 
the 20th Century saw the danger in abundant time to save 
the situation and they possessed the influence requisite to 
save it, but they were so steeped in money-making that the 
necessary zeal and energy were lacking.” 


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